Upholding People's Rights under the Constitution

Monday, July 30, 2012

Application of 29 June to the Information Commissioner for Reviewing FOI Decision

Dear Prof McMillan,I request a review of a decision made by Ms Philippa Lynch, First Assistant Secretary, Government Division, Department of the Prime Minister and Cabinet dated 4 June 2012 (Ref: FOI/2012/006) under the Freedom of Information Act 1982 (the FOI Act).A. Documents 1 and 5Ms Lynch reviewed the decision made by Mr Russell Egan, Assistant Secretary, Government Division, dated 16 February 2012. In response to my inquiry she found an additional document, document 5, which was attached to document 1 and had not been identified by the Department. She altered Mr Egan’s decision in respect of documents 1, 2 and 3 and disclosed a part of the document 1, which is also a part of documents 2 and 3 and had been deleted by Mr Egan; therefore she fully disclosed the documents 2 and 3. She deleted a part of the newly released document 5. (a) ‘purely factual material’According to both the newly released document 5 dated 17 July 2009 and the actual letter sent to me three days later on 20 July 2009, the deleted part in document 5 is the reason of why the matter was not raised to the Prime Minister’s attention. That is a ‘purely factual material’; therefore, it should be released under section 47C(2)(b) of the FOI Act. (b) ‘final decision’Under section 47C(3)(c) of the FOI Act, the ‘final decision given in the exercise of a power or of an adjudicative function’ must be disclosed. According to the context, Mr Jose, as the director of Cabinet and Parliament, exercised his ‘power’ and ‘adjudicative function’ and decided not to disclose the real reason; therefore in the letter of 20 July 2009 to me, it did not mention at all whether the Prime Minister was informed about the matter. Mr MacDowell proposed to provide the fact. Mr Jose instructed her to omit the fact. This is not about legal advice or brainstorm. This is Mr Jose’s ‘final decision given in the exercise of [his] power or of [his] adjudicative function’. As a result Mr Jose’s final decision and reasons of his decision must be disclosed under section 47C(3)(c) of the FOI Act and section 6.68 of the Guidelines issued by the Information Commissioner under section 93A (the FOI Guideline).(c) Ms Lynch’s reasonsMs Lynch accepted my points and disclosed some facts. According to the newly released facts in document 1 and 5 she correctly pointed out that Mr Jose did not specifically refer to the FOI application fee; however she did not argue or deny that Mr Jose exercised his ‘power’ and ‘adjudicative function’ in his emails, which were not disclosed by Ms Lynch. Her excuse was ‘it is difficult to separate the purely factual material from the deliberative matter’. Obviously she defined the ‘final decision given in the exercise of a power or of an adjudicative function’ under section 47C(3)(c) of the FOI Act as ‘deliberative matter’. Her definition is against section 47C(3)(c) of the FOI Act. Put it another way, in her opinion, there was not any ‘final decision given in the exercise of a power or of an adjudicative function’ about the matter, or the government did not perform in the way assumed by the FOI Act and the FOI Guideline. In my opinion that is ridiculous; however if that was the case, my suggestion is that you investigate how the government dealt with the matter and may include this situation and circumstance in the FOI Act and FOI Guideline accordingly.B. Document 4Ms Lynch did not alter Mr Egan’s decision in respect of document 4. The simple facts about the name and position of the officer who gave the instructions in the document 4 were not disclosed. As outlined above, the facts must be disclosed under the FOI Act.Ms Lynch applied the same logic analysed above— the ‘final decision given in the exercise of a power or of an adjudicative function’ under section 47C(3)(c) of the FOI Act were ‘deliberative matter’. She did not contest or deny that document 4 contains the final decision and its reasons, which must be disclosed under section 47C(3)(c) of the FOI Act. In according with section 47C(3)(c) of the FOI Act, that part of the document 4 must be disclosed.Ms Lynch declared that the document 4 contained ‘instructions for drafting a response’, and did not deny or clarify that these instructions were in the nature of a decision within the meaning of section 47C(3)(c) of the FOI Act. On the face of it, her reasons given about document 4 further show that she did not want to disclose the decisions or instructions given by officers in higher positions (the deleted part in document 5 actually formed a part of Jose’s decision). She left it to you to clarify whether or not those decisions or instructions must be disclosed under section 47C(3)(c) of the FOI Act.C. Public interestMs Lynch accepted my point that ‘the public interest factor’ ‘is an additional factor favouring of the document [4]’. Documents 1 and 5 relate to the same matters that document 4 relates to; however, she argued it was not clear. If she was really not clear, she should ask me to clarify it. The relevant information may be found in the website: http://upholding-people-right.info/. If you need further clarification please do not hesitate to inform me, I am more than happy to provide further information.Even though the public interest factor is an additional factor favouring of disclosing document 4, Ms Lynch still worried about her authority to disclose the decisions or instructions given by the officers in higher or more powerful positions. Section 11B(4) of the FOI Act particularly deals with such worries and defines such worries as irrelevant facts. Ms Lynch in her decision did not address this point in my application for the review. Nevertheless she did not address my point in my application in relation to ‘substantial adverse effect’ to ‘the particular document, particular circumstance and particular time’, which is required by sections 6.14, 6.20 and 6.21 of the FOI guidelines.SummaryAs Ms Lynch’s position in the Federal Government may cause a potential conflict of interest, she may not be in the best position to make an uncompromised decision. She did not disclose the final decisions or decisive instructions and their reasons, and the pure facts about the names and positions of the final decision-makers, being contrary to above-mentioned sections of the FOI Act and FOI guidelines. She needs your help and support.Enclosure:Ms Lynch’s decision and attached document